Kesande Byamukama v St Matayo Group (Civil Appeal No. 8 of 2020)
Observed later treatment
No later-treatment classification is recorded for this judgment.
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Holding
A non-existent legal entity cannot sue or be sued, cannot pay costs, and cannot have orders enforced against it. Where a respondent described as a local organized group lacks legal personality, the entire proceedings are a nullity and cannot be cured by amendment or substitution. The trial court erred in entertaining and determining the suit against such an entity.
Outcome
Judgment and orders of the lower court set aside; proceedings declared a nullity
Facts
The Appellant sued the Respondent, described as a local organized group operating in Kyanamira sub-county, seeking a declaration that land at Kigata belonged to her family and an eviction order. The Appellant's husband had been a member of the defendant group and borrowed money in 1999, agreeing the group could use the land until repayment. When the Appellant attempted to repay the loan with interest in 2014, the Respondent refused, claiming the husband had sold the land. An agreement of sale was tendered showing the husband sold the land to the group. The trial Magistrate held the Appellant failed to prove the land was matrimonial property and dismissed the suit with costs to the Respondent.
Issues
- Whether a non-existent legal entity can maintain an action in court
- Whether costs can be awarded to a non-existent entity
- Whether proceedings involving a non-existent legal entity constitute a nullity
Orders
- Appeal allowed.
- Judgment and orders of the Magistrate's Court set aside.
- No order as to costs since a non-existent entity cannot be awarded costs.
Rules and key headnotes
Cases cited (6)
- Fort hall Bakery Supply Company v Fredrick Muigai Wangoe (1959) EA 474
- Chombe & Others v Kaya & Another (HCCA No. 2010 of 2015)
- The Registered Trustees of Miracle Center v Omulangira Ssimbwa (MA No. 57 of 2006)
- Reliable African Insurance V NIC (1979)59
- Benjamin Sajjabi v Timber Manufacturers (1986) HCB 202
- Housing Finance Bank of Kenya Ltd v Embakasi Development Project (2004) 2 KLR 548
Full judgment
The original judgment as reported. Read the original PDF before relying on any passage.